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Top Income Support & Jobseeker's Allowance topic #6865

Subject: "EU NATIONAL - NEW BABY- INCOME SUPPORT" First topic | Last topic
jacky
                              

senior caseworker - general advice, Cheetham Hill Advice Centre
Member since
31st Jul 2007

EU NATIONAL - NEW BABY- INCOME SUPPORT
Wed 08-Apr-09 03:25 PM

client was claiming JSA, then advised to claim IS on 29/12/08, gave birth on 2/21/09 - IS refused on 25/2/09

Have been advised that can use ART 8 of directive 68/360 re temporarily unfit for work (she has previously worked in U.K) and argue that a british national woman is treated as temporarily unfit for work for 11 weeks before birth and 15 weeks after so same should apply to EU natioal.

I wondered if anyone has used this argument successfully and also what are the rules regarding JSA entitlement whilst pregnant and with new born baby - I am presuming that if someone in the period 11 weeks prior to birth and 15 weeks after wishes to sign on as a workseeker that they are free to do so - and if this is the case I can also argue that she was wrongly advised to claim IS by DWP etc - oh when will they learn!

  

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Replies to this topic
RE: EU NATIONAL - NEW BABY- INCOME SUPPORT, Steve Johnson, 10th Apr 2009, #1
RE: EU NATIONAL - NEW BABY- INCOME SUPPORT, ros_white, 15th Apr 2009, #2
      RE: EU NATIONAL - NEW BABY- INCOME SUPPORT, Steve Johnson, 16th Apr 2009, #3
           RE: EU NATIONAL - NEW BABY- INCOME SUPPORT, ros_white, 20th Apr 2009, #4

Steve Johnson
                              

Manager, Walthamstow CAB
Member since
24th Oct 2005

RE: EU NATIONAL - NEW BABY- INCOME SUPPORT
Fri 10-Apr-09 03:40 PM

Directive 68/360 was repealed by Residence Directive 2004/38/EC. I don't think the Residence Directive will support cases based on a simple comparison to British women, because they automatically have the RTR, and the Residence Directive is all about which non-British Union Citizens have the RTR. Discrimination is allowed under certain circumstances, as I am sure you are aware.

It is generally important to decide if the client is a 'worker who is no longer working', as per Reg 6(2) of the Imm (EEA) regs 2006, or a straightforward 'jobseeker', as per Reg 6(1) of the same regs. The former is a better place to be in terms of rights.

So far as the pregnancy goes, it looks like she was not working when she stopped work, so all the arguments about retained worker status whilst pregnant are no use. There is the possible argument that as a 'worker no longer working' (see above) she can argue they are temporarily incapable for work, especially if there is illness related to pregnancy (would have to be IRESA though). If the client is a jobseeker, there is no facility for claiming benefits during temporary illness.

Can your client pursue RTR based on permanent residence under reg 15 of the regs?

If none of the above help, you could try justifying an IS award via EC Directive 92/85. I have never tried this.

Last of all, there is always the long shot of IS applications based on the direct application of EC Articles (where your post started!). Some suggest Article 12 is a possible winner, but my understanding is that this only rocks by forbidding discrimination between those WHO HAVE the RTR. Then there is the much loved Article 18. The Baumbast fall out suggests that it remains very unclear whether Article 18 will work in cases where the applicant is not self-sufficient. I suppose the eventual outcome of Harrow v Ibrahim may resolve this.

On balance, I think the client should claim JSA, and press for compensation if the advice to claim IS came from Jobcentre Plus. In our area, we have had loads of clients in similar circumstances to yours being told to claim IS. Why so? I hope not simply as away of managing JSA workload.

Happy Easter!

Steve




  

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ros_white
                              

welfare benefits adviser, notting hill housing trust, hammersmith
Member since
11th Jan 2008

RE: EU NATIONAL - NEW BABY- INCOME SUPPORT
Wed 15-Apr-09 12:29 PM

On a positive note, the DWP has recently paid a client of mine £2660 in compensation for JSA not claimed because they told her to claim IS as a single parent. I also asked them to compensate her for the HB and tax credits she didn't get but instead they contacted HB and tax credits and asked them to cough up for the period. HB paid more than more than £8000 and the DWP is still trying to sort things out with tax credits (!?!) but have acepted that she needs to be either paid them or compensated for them. Hoorah!

  

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Steve Johnson
                              

Manager, Walthamstow CAB
Member since
24th Oct 2005

RE: EU NATIONAL - NEW BABY- INCOME SUPPORT
Thu 16-Apr-09 07:27 AM

Fantastic! Several upper tier judges have recommended the compensation route.

  

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ros_white
                              

welfare benefits adviser, notting hill housing trust, hammersmith
Member since
11th Jan 2008

RE: EU NATIONAL - NEW BABY- INCOME SUPPORT
Mon 20-Apr-09 10:38 AM

Yes. We were helped by the fact that we had been to tribunal with a rather tenuous argument (putting it politely) which the chair could not accept, but he did say in the decision notice that it was clear that the client had been wrongly told to claim IS and that compensation might be an appropriate remedy.

  

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Top Income Support & Jobseeker's Allowance topic #6865First topic | Last topic